Can I Kick My Spouse Out of the House? (Dwelling Exclusion Orders)

A dwelling exclusion order or “kick out” order may help you get your ex-spouse out of the house.

Dwelling Exclusion (or “kick out”) orders are orders by the judge that allow you to legally exclude your spouse or significant other from your home to gain sole possession of your home undear certain emergency circumstances. Under California Family Code 6321¹, if you meet certain requirements – typically in cases of domestic violence – your lawyer can go to a judge and obtain an exclusion order even if your spouse or significant other owns the property or is the only one on the lease.

In order to obtain kick out orders, your attorney must show that all of the following are true:

• You have a right to possess the home;
• You spouse or significant other has assaulted or threatened to assault you, your child, or any person that is under your care, custody, and control; AND
• If the exclusion order were not granted, physical OR emotional harm would otherwise result.

How to Use Dwelling Exclusion Orders to Kick Your Out Your Ex (Family Code 6321)

In order to obtain an exclusion order under Family Code 6321,  you will need to have your attorney submit an ex parte application. In California, the court will be reluctant to grant your application unless it finds that there is a true emergency because the other party will not be entitled to formally present their side of the story in court. In Orange County, the court requires you to show that there is an immediate threat of serious harm based on specific acts that are recent in time.

At the ex parte hearing, you will be expected to show good cause for why your order should be granted. The court will expect objective evidence that an emergency exists pointing to a serious risk of harm. This means that if you have evidence such as a video, texts or a sworn statement from a witness, you will be more likely to persuade the judge that an exclusion order is necessary.

You can also seek a Temporary Restraining Order (TRO). The difference here is that the judge will likely be more willing to grant such a request. If granted, your spouse or significant other will not be able to come within a certain distance of you, your child or other dependent wherever you are. The court will then set a hearing so that both sides will be able to present their positions and the judge can make a final decision.

Circumstances Under Which Dwelling Exclusion Orders are Granted

Typically, orders under Family Code 6321 are issued on an emergency basis. However, often in cases of domestic violence, waiting for an emergency or the final straw to happen could be too late and the damage may already be done.

Under Family Code Section 6340(c)², you may be able to obtain an exclusion order so long as you can show that physical or emotional harm would result if the order were not granted. This is a lower standard of proof than Family Code 6321 and it is not necessary that an emergency situation be occurring to obtain these orders.

Call the Riverside Family Law Attorneys at Wallin & Klarich

The family law attorneys at Wallin & Klarich have over 30 years of experience successfully helping clients in family court in Riverside. Our skilled Riverside family law attorneys can help you obtain court orders that reduce the need for future conflict between you and your child’s other parent or significant other you live with.

With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich family law attorney available near you no matter where you work or live.

Call us today at (888) 749-7428 for a free phone consultation. We will be there when you call.

^{1. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=06001-07000&file=6320-6327↩}

^{2. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=06001-07000&file=6340-6346↩}